86 F.

3d 1303

UNITED STATES of America, Plaintiff-Appellee

v.
Alexander Eugenio MOSKOVITS, Defendant-Appellant.
Nos. 94-1990 and 95-1048.

United States Court of Appeals,

Third Circuit.
Argued Oct. 11, 1995.
Decided June 25, 1996.

L. Barrett Boss (argued) Asbill, Junkin & Myers, Chtd., Washington, DC,
for Appellant.
Michael R. Stiles, United States Attorney, Walter S. Batty, Jr., Assistant
United States Attorney, Chief of Appeals, Kristin R. Hayes (argued),
Assistant United States Attorney, Philadelphia, PA, for Appellees.
Before: STAPLETON, McKEE, and NORRIS1 , Circuit Judges.
OPINION OF THE COURT
WILLIAM A. NORRIS, Circuit Judge:

In 1988, Alexander E. Moskovits was convicted by a jury of various narcotics

offenses related to the possession and distribution of cocaine. He was sentenced
by Judge Louis H. Pollak to fifteen years imprisonment.2 Judge Pollak later
granted Moskovits's 2255 motion to vacate the conviction on the ground that
Moskovits's trial counsel was ineffective, United States v. Moskovits, 844
F.Supp. 202 (E.D.Pa.1993), and granted Moskovits's request to represent
himself at the new trial. Moskovits was again convicted and sentenced by
Judge Clarence C. Newcomer3 to a prison term of twenty years, five years
longer than the sentence imposed by Judge Pollak.

On appeal, Moskovits contends that his conviction must be set aside on either
of two grounds: (1) that his right to testify in his own defense was abridged by
the conditions imposed on the format of his testimony, and (2) that he did not

knowingly and intelligently waive his Sixth Amendment right to counsel.

Moskovits also contends that, even if the conviction is affirmed, the case must
be remanded for resentencing because his sentence was based on impermissible
considerations. We affirm the conviction but remand for resentencing.
3

* Moskovits contends that his conviction must be set aside because the district
court imposed unreasonable conditions on his right to testify in his own
defense.4 He argues that these conditions were so onerous that he had no choice
but to forgo his right to testify.

We express no view on the propriety of the conditions imposed by Judge

Newcomer because Moskovits, by electing not to testify, failed to preserve this
issue for appeal. Because Moskovits did not testify, any possible harm flowing
from the conditions imposed by Judge Newcomer is speculative and cannot be
evaluated in relation to the record as a whole.5 Accordingly, we decline to set
Moskovits's conviction aside on this ground. See Luce v. United States, 469
U.S. 38, 4142, 105 S.Ct. 460, 463-64, 83 L.Ed.2d 443 (1984) (defendant must
testify in order to raise and preserve the claim of improper impeachment with a
prior conviction); United States v. Romano, 849 F.2d 812, 815-16 (3d
Cir.1988) (when defendant refuses to testify, the harm flowing from an in
limine order is merely speculative and, thus, not a basis for reversing a
conviction); United States v. Nivica, 887 F.2d 1110, 1116-17 (1st Cir.1989),
cert. denied, 494 U.S. 1005, 110 S.Ct. 1300, 108 L.Ed.2d 477 (1990)
(defendant who does not testify may not challenge ruling regarding the scope of
permissible cross-examination).

II
5

Moskovits also seeks a new trial on the ground that the colloquy with the
district court at the time he waived his right to counsel was thoroughly
"deficient." In fact, as the government points out, Judge Pollak conducted a
lengthy and detailed colloquy that was, in all respects but one, a model of
thoroughness. Judge Pollak set out the dangers and difficulties of proceeding
pro se, stating that it would be "an imprudent course" and that Moskovits would
be doing himself "a very very grave disservice." App. at 41. Judge Pollak
spelled out the cumbersome procedures Moskovits would have to follow to
maintain the distinction between his roles as lawyer and defendant.6 He
endorsed the Assistant United States Attorney's statement that Moskovits
would lose the benefit of the advice of counsel regarding the most effective
way to present his case to the jury.7 Judge Pollak also appointed stand-by
counsel. Nonetheless, it is undisputed that punishment was not discussed at the
waiver hearing. In particular, Judge Pollak did not inform Moskovits of the

range of punishments he faced on retrial.

6

For a waiver of the right to counsel to be "knowing[ ] and intelligent[ ]," which
it must be in order to be valid, the defendant "should be made aware of the
dangers and disadvantages of self-representation, so that the record will
establish that 'he knows what he is doing and his choice is made with eyes
open.' " Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45
L.Ed.2d 562 (1975). To ensure that a defendant "truly appreciates the 'dangers
and disadvantages of self-representation,' ... '[a defendant's] waiver must be
made with an apprehension of the nature of the charges, the statutory offenses
included within them, [and] the range of allowable punishments thereunder.' "
United States v. Welty, 674 F.2d 185, 188 (3d Cir.1981) (quoting Faretta, 422
U.S. at 835, 95 S.Ct. at 2541, and von Moltke v. Gillies, 332 U.S. 708, 724, 68
S.Ct. 316, 323, 92 L.Ed. 309 (1948) (plurality)) (emphasis added); see also
Singer v. Court of Common Pleas, 879 F.2d 1203, 1210 (3d Cir.1989) (no
waiver where court failed to inform defendant of range of punishment he might
be exposed to); McMahon v. Fulcomer, 821 F.2d 934, 945 (3d Cir.1987)
(same); Piankhy v. Cuyler, 703 F.2d 728, 731 (3d Cir.1983) (same).

The government concedes that Moskovits was not advised during the waiver
hearing that he faced the possibility of an increase in the fifteen-year sentence
that had been originally imposed by Judge Pollak, but argues that his waiver of
his right to counsel was knowing and intelligent because the record shows that
he was aware of this possibility at the time of the waiver hearing. The
government frames its argument as follows: "[T]he record establishes that
although not specifically advised of the possibility of an increased sentence at
the waiver hearing before Judge Pollak, Moskovits understood that possibility
before the trial commenced before Judge Newcomer." Appellee's Brief at 16. In
making this argument, the government relies on the record of proceedings both
before and after the waiver hearing conducted by Judge Pollak.

The government relies on United States v. McFadden, 630 F.2d 963 (3d
Cir.1980), cert. denied, 450 U.S. 1043, 101 S.Ct. 1763, 68 L.Ed.2d 241 (1981),
for the proposition that if the defendant has otherwise been made aware of the
range of punishment he faced, the court is not required to notify him again at
the time he waives his right to counsel. McFadden, however, is distinguishable
on its facts in a material respect. In McFadden, the record was clear that the
defendant was aware of the range of punishment he faced when he waived his
right to counsel. As this court said, "[t]he nature of the charges and the range of
punishment had been pointed out in McFadden's two initial appearances before
a magistrate." Id. at 972.

Here the record is not at all clear that Moskovits had been made aware when he
waived his right to counsel before Judge Pollak that the original 15-year
sentence would not serve as a ceiling on the sentence he could receive in the
event he was convicted again. The government cites the Pre-Sentence
Investigation Reports (PIRs) that were prepared when Moskovits was originally
sentenced and resentenced.8 In relying on these PIRs as evidence that
Moskovits was aware that he faced the possibility of an increased sentence if
found guilty a second time, the government assumes, implicitly, that Moskovits
either read and understood the PIRs or that counsel then representing him
explained to him that the maximum sentences set forth in the PIRs could be
imposed in spite of the fact that Moskovits's sentence would then exceed the
15-year sentence originally imposed. The government cites no record support
for either assumption, and we have found none. Thus there is no record support,
as there was in McFadden, for imputing to Moskovits knowledge at the time he
waived his right to counsel that the original 15-year sentence would not act as a
ceiling on his punishment. Accordingly, we see no basis for inferring that
Moskovits was aware from the mere existence of the PIRs that he was facing
the possibility of an increased sentence if found guilty a second time,
particularly given our mandate to "indulge in every reasonable presumption
against waiver" of the right to counsel. Brewer v. Williams, 430 U.S. 387, 404,
97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977).

10

The government also cites a conference in Judge Newcomer's chambers six or

seven days before the start of the retrial as evidence that Moskovits was aware
at the waiver hearing before Judge Pollak five months earlier that he faced the
possibility of a twenty-year sentence. The extract from the transcript of the inchambers conference relied upon by the government reads as follows:

11 COURT: Okay. Now, my understanding of the law, and I mention this at the
THE
outset so that everybody knows my view of the law on this matter, and if you
disagree with it that you will then have an opportunity to furnish me with the
authority for your stance, is that this sentence having been vacated and a new trial
being granted, we are in an entirely new ballgame. And this matter is like a new
case coming before me for trial for sentence with the power vested in the presiding
judge to determine, if appropriate, if there should be a conviction the sentence that
would be applicable.
I understand this case preceded the guidelines, is that right?
12
THE GOVERNMENT: That is correct, your Honor.
13
14 COURT: And therefore this case will not be sentenced under the guidelines, is
THE
that correct?

THE GOVERNMENT: That would be-15

16 COURT: If there should be a conviction. All right.Now, if anybody disagrees
THE
with that, please feel free to tell me but give me your authority for it because I've
satisfied myself from independent research here in chambers that that's the case.
MR. MOSKOVITS: Your Honor.
17
THE COURT: Yes, sir.
18
19 MOSKOVITS: With all due respect. If I understand the law correctly, there's
MR.
two cases that come to mind. One of them is not-THE COURT: If there are, you can do this in writing.
20
MR. MOSKOVITS: Oh, in writing?
21
THE COURT: Yes.
22
MR. MOSKOVITS: Thank you, sir.
23
24 COURT: I want--for a matter that important, I would much prefer to have you
THE
do it. It doesn't have to be fancy and certainly not long, but I'd like specifically to
have your authority so that I can, you know, search it out carefully.
MR. MOSKOVITS: Thank you, your Honor.
25
26

App. at 62-64.

27

While it is true that Judge Newcomer said he would have a free hand at
sentencing because the retrial would be like a new case coming before him, he
did not say anything about his authority to impose a sentence longer than
fifteen years. Moreover, even if Moskovits's response to Judge Newcomer
indicates "that Moskovits himself recognized the possibility of an increased
sentence and had conducted legal research in an attempt to determine the limits
of the court's authority," as the government argues,9 Appellee's Brief at 15,
Moskovits's waiver of his right to counsel would still be defective. For a waiver
of counsel to be valid, the defendant must be aware of the dangers of selfrepresentation at the time of the waiver. Welty, 674 F.2d at 188-89 ("to be valid
[a defendant's] waiver must be made with an apprehension of ... the range of
allowable punishments") (quoting von Moltke v. Gillies, 332 U.S. 708, 724, 68
S.Ct. 316, 323, 92 L.Ed. 309 (1948) (plurality)); McFadden, 630 F.2d at 979 n.
10 (Adams, J., dissenting) ("von Moltke makes clear [that] a defendant's waiver
of the right to counsel is made knowingly only if he apprehends the charges and

possible punishments at the time the waiver is made.").

28

On this point, the government's reliance on McFadden, 630 F.2d at 963, is

again misplaced. In McFadden, the record established that the defendant was
aware at the time of the waiver hearing of the range of punishments he faced
because he had been given this information during earlier appearances before a
magistrate. Here, in contrast, the government is asking us to impute knowledge
to Moskovits at the waiver hearing before Judge Pollak on the basis of a
proceeding that took place five months after the hearing. In other words, the
government is asking us to extend McFadden beyond its holding and infer that
a defendant had knowledge at a waiver hearing on the basis of proceedings that
occurred five months later. This we decline to do, lest we fail to "indulge every
reasonable presumption against waiver of fundamental constitutional rights."
Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461
(1938).

29

The question we now consider is the appropriate remedy for the failure to
inform Moskovits that he could receive a sentence longer than his originally
imposed sentence of fifteen years. The Supreme Court has recognized that "
[c]ases involving Sixth Amendment deprivations are subject to the general rule
that remedies should be tailored to the injury suffered from the constitutional
violation and should not unnecessarily infringe on competing interests," such
as, "the necessity for preserving society's interest in the administration of
criminal justice .... Our approach has thus been to identify and then neutralize
the taint by tailoring relief appropriate in the circumstances to assure the
defendant ... a fair trial." United States v. Morrison, 449 U.S. 361, 364-65, 101
S.Ct. 665, 668, 66 L.Ed.2d 564 (1980).

30

Although the record does not tell us that Moskovits was aware at the time of his
waiver hearing that he could be sentenced to a term longer than fifteen years if
found guilty a second time, Moskovits certainly knew that he could again
receive a fifteen-year sentence if found guilty at the retrial. Indeed, Moskovits
admits that he knew at the time he waived his right to counsel that he could
again be sentenced to a fifteen-year term. Appellant's Brief at 6 ("the prior
resentencing provided strong support for Mr. Moskovits's understanding that
the recently vacated sentence would have served as a ceiling at any resentencing following a re-conviction"). As Moskovits's own attorney stressed at
the waiver hearing, Moskovits was "ultra bright" and knowledgeable about the
case. 10

31

Because Moskovits knew at his waiver hearing that he could be sentenced a

second time to a fifteen-year term, the only prejudice he could conceivably

suffer from the deprivation of his Sixth Amendment right is a sentence greater
than fifteen years. Accordingly, the appropriate remedy for the deprivation is to
affirm the conviction but impose a fifteen-year ceiling on Moskovits's sentence.
Cf. Scott v. Illinois, 440 U.S. 367, 374, 99 S.Ct. 1158, 1162, 59 L.Ed.2d 383
(1979) (although the Sixth Amendment guarantees the right to counsel during a
misdemeanor prosecution, failure to provide counsel is not unconstitutional as
long as the defendant is not punished by imprisonment, even if imprisonment is
authorized by statute); United States v. Reilley, 948 F.2d 648, 654 (10th
Cir.1991) (striking down portion of sentence imposed on uncounseled
misdemeanor defendant that involved conditionally suspended term of
imprisonment but affirming portion of sentence involving a fine); United States
v. White, 529 F.2d 1390, 1394 (8th Cir.1976) (upholding conviction but
vacating suspended prison sentence imposed on misdemeanor defendant who
did not waive right to counsel).
32

The twenty-year sentence imposed by Judge Newcomer is vacated and the case
is remanded for resentencing.

III
33

We now turn to Moskovits's claims of error at the sentencing phase of the

retrial. Judge Newcomer gave a number of reasons for the twenty-year sentence
he imposed, among which were the serious nature of the crimes, Moskovits's
prior involvement in the transportation and distribution of cocaine, Moskovits's
poor prospects for rehabilitation, and Moskovits's lack of remorse and failure to
accept responsibility for his crimes, as evidenced--among other things--by
Moskovits's refusal to accept the government's plea offer. In addition, Judge
Newcomer specifically cited his finding that Moskovits committed perjury at
the evidentiary hearing on his 2255 petition as a justification for imposing a
sentence that was greater than the fifteen-year sentence originally imposed.
Moskovits argues that his case must be remanded for resentencing because
Judge Newcomer (A) acted with actual vindictiveness when he imposed a
harsher sentence after the retrial, (B) improperly punished Moskovits for
refusing to plead guilty, and (C) erred when he found that Moskovits had
committed perjury at the 2255 hearing before Judge Pollak and considered
this finding at sentencing. We address each of these arguments in turn.

34

* Moskovits does not attempt to invoke the presumption of vindictiveness that

normally arises when a harsher sentence is imposed after a retrial. See North
Carolina v. Pearce, 395 U.S. 711, 725-26, 89 S.Ct. 2072, 2080-81, 23 L.Ed.2d
656 (1969). Nor could he. We have held that a harsher sentence imposed after a
retrial is not presumed to be vindictive if it is imposed by a "judge who ... ha[d]

no material contact with the initial trial or sentence and 'provides an on-therecord, wholly logical, non-vindictive reason for the harsher sentence.' " Rock
v. Zimmerman, 959 F.2d 1237, 1257-58 (3d Cir.1992) (en banc) (quoting Texas
v. McCullough, 475 U.S. 134, 140, 106 S.Ct. 976, 980, 89 L.Ed.2d 104
(1986)). Judge Newcomer had no contact whatsoever with Moskovits's initial
trial and set out, on the record, plausible reasons for the harsher sentence he
imposed.
35

Moskovits instead argues that the harsher sentence imposed by Judge

Newcomer resulted from actual vindictiveness. The only proof of Judge
Newcomer's actual vindictiveness offered by Moskovits is Judge Newcomer's
statement that if he "were to sentence Moskovits to the same sentence that he
originally received, it would countenance frivolous Section 2255 claims and
encourage defendants to file them in hopes of gaining a reduced sentence long
after their time to file Rule 35 motions had expired." App. at 135. According to
Moskovits, Judge Newcomer's characterization of his successful 2255
petition as "frivolous" reflects the actual vindictiveness with which he imposed
sentence. We are, however, not persuaded that this statement alone is enough to
establish actual vindictiveness, particularly in light of the numerous other,
logical reasons Judge Newcomer stated for imposing the twenty-year
sentence.11

B
36

After Judge Pollak granted Moskovits a new trial, the government offered a
plea bargain involving a sentence no greater than time served. Moskovits's
rejection of this offer was a factor considered by Judge Newcomer when he
imposed the twenty-year sentence. As Judge Newcomer explained, "[t]o me,
[Moskovits's] refusal to accept the plea is further evidence of his lack of
remorse and failure to take responsibility for his crimes." App. at 137.

37

We agree with Moskovits that Judge Newcomer erred when he considered as a

sentencing factor Moskovits's decision to exercise his constitutional right to a
trial by jury rather than accept the government's plea offer. United States v.
Jackson, 390 U.S. 570, 581-82, 88 S.Ct. 1209, 1216-17, 20 L.Ed.2d 138 (1968)
(invalidating death sentence under Federal Kidnapping Act because it could be
imposed only upon a defendant who elected a jury trial, whereas the maximum
penalty that could be imposed on a defendant waiving this right was life
imprisonment); Corbitt v. New Jersey, 439 U.S. 212, 223, 99 S.Ct. 492, 499, 58
L.Ed.2d 466 (1978) (upholding statute that allows judge to exercise leniency by
choosing a lesser sentence for murder defendants who pleaded non vult );
United States v. Paramo, 998 F.2d 1212, 1219 (3d Cir.1993) (prosecutor may

not refrain from filing a motion necessary for a downward departure because
the defendant elected to go to trial), cert. denied, --- U.S. ----, 114 S.Ct. 1076,
127 L.Ed.2d 393 (1994).
38

The government argues that Judge Newcomer's comment, quoted above, does
not show that he was penalizing Moskovits for having elected to go to trial but
rather merely expresses Judge Newcomer's view that Moskovits had been
unwise to reject the plea offer. The government also asserts, without
explanation, that Judge Newcomer was not punishing Moskovits for exercising
his right to go to trial, but was merely withholding leniency. These arguments
are implausible, however, in light of the fact that Judge Newcomer made his
comment in the context of setting out his reasons for the harsher sentence he
was imposing.

C
39

Moskovits argues that Judge Newcomer also committed error in basing his
twenty-year sentence on a finding of fact that Moskovits committed perjury at
the evidentiary hearing held on his 2255 petition. Judge Newcomer's finding
of perjury was based upon his reading of the transcript of Moskovits's 2255
testimony before Judge Pollak, considering the testimony of the government's
witnesses, and concluding that the version of the facts to which Moskovits
testified was contradicted by the verdicts of the juries at his original trial and
retrial. As Judge Newcomer put it, "[t]he proof that Moskovits perjured himself
lies in the fact that two juries listened to the identical evidence [that Moskovits
denied at the 2255 hearing] and convicted him." App. at 132.

40

Moskovits argues that Judge Newcomer's finding of perjury was improper

because it was not made independently of the juries' verdicts. Moskovits relies
on United States v. Dunnigan, 507 U.S. 87, 113 S.Ct. 1111, 122 L.Ed.2d 445
(1993), which holds that a district court that enhances a sentence because the
defendant committed perjury must "review the evidence and make independent
findings necessary to establish a willful impediment to or obstruction of
justice." Id. at 95, 113 S.Ct. at 1117 (interpreting federal sentencing guidelines).
In other words, the sentencing judge must have a basis for his finding of perjury
that is "independent" of the jury verdict.

41

In response, the government asserts that Judge Newcomer independently

considered the testimony of the witnesses for the prosecution at the retrial,
recognized that the juries by their verdicts had found these witnesses' version of
the facts to be true beyond a reasonable doubt, and concluded that Moskovits
committed perjury when he testified at the 2255 hearing to a contradictory

version of the facts.

42

We are satisfied that Judge Newcomer did not err when he made a finding that
Moskovits committed perjury at the 2255 hearing. Judge Newcomer
explained on the record that there were "numerous occasions on both direct and
cross-examination [when] Moskovits testified that he did not take the specific
criminal actions which the Government's evidence established that he did take."
App. at 132. Judge Newcomer specifically cited Moskovits's testimony that he
did not receive phone calls from one of his alleged co-conspirators while he was
in prison in Mexico, which was contradicted by the co-conspirator's testimony
and phone bills; his testimony that there was an innocent explanation for his
actions in connection with a package of cocaine, which was contradicted by the
testimony of five government witnesses; his denial that he directed two coconspirators to travel to South America and purchase cocaine there, which was
contradicted by the co-conspirators' testimony; his disavowal of ownership of a
machine gun, which was contradicted by the testimony of four government
witnesses; and his assertion that eight tape recordings of telephone
conversations with a co-conspirator did not relate to drug transactions, which
was contradicted by the testimony of the co-conspirator and two other
government witnesses. App. at 132-34.

43

Although Judge Newcomer was not present at the hearing and thus not in a
position to observe Moskovits's testimony, Dunnigan leaves open the
possibility of finding all the elements of perjury--falsity, materiality, and
willfulness--when there are "numerous witnesses who contradicted [the
defendant] regarding so many facts on which [he] could not have been
mistaken." Dunnigan, 507 U.S. at 95-96, 113 S.Ct. at 1117. See also United
States v. Boggi, 74 F.3d 470, 478-79 (3d Cir.1996) (upholding sentencing
judge's finding of perjury under the Sentencing Guidelines, in part by reference
to facts implicit in the jury's verdict). Moreover, because Judge Newcomer was
sentencing Moskovits under the pre-Sentencing Guidelines regime, he had
broad discretion to consider any and all information about Moskovits's relevant
conduct and to determine what effect, if any, that information would have on
the sentence. See United States v. Grayson, 438 U.S. 41, 51, 98 S.Ct. 2610,
2616, 57 L.Ed.2d 582 (1978) (upholding sentencing enhancement in preGuidelines case on sentencing judge's view, based on government's rebuttal
evidence and cross-examination, that the defendant committed perjury during
trial); United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30
L.Ed.2d 592 (1972) (in pre-Guidelines case, "before making [the sentencing]
determination, a judge may appropriately conduct an inquiry broad in scope,
largely unlimited either as to the kind of information he may consider, or the
source from which it may come").

44

The conviction is AFFIRMED. The twenty-year sentence imposed by Judge

Newcomer is VACATED and the case is REMANDED for further proceedings
consistent with this opinion.

45

STAPLETON, Circuit Judge, concurring in part and dissenting in part:

46

I join sections I and III of the court's opinion, although I believe that a more
detailed explanation is warranted regarding section III-B. I cannot join section
II.

I.
47

In section II, the court concludes that Moskovits's waiver of his right to counsel
cannot be said to be knowing and intelligent because the record fails to show
that he was aware at the waiver hearing that his sentence after retrial could be
greater than his vacated sentence. I agree that Moskovits could not knowingly
and intelligently waive the right to counsel without knowing that he had
something to lose in a retrial. Further, I agree that Moskovits was not advised at
the waiver hearing that he could face a greater sentence after retrial. The record
does affirmatively establish, however, that this advice would not have altered
Moskovits's decision to represent himself and, accordingly, that the failure to
give it had no effect on the subsequent course of events. Under these
circumstances, I find no basis for disturbing Moskovits's conviction.

48

When Moskovits indicated a desire to represent himself, Judge Pollak spoke at

length and in depth with him about his right to counsel and the dangers of selfrepresentation. Moskovits acknowledges that Judge Pollak "touched all the
bases" save the one he now stresses. Only after Moskovits insisted that he
understood the advantages of counsel and the disadvantages of selfrepresentation did Judge Pollak agree to let Moskovits take the lead role in his
own defense. In order to provide assistance to Moskovits, however, and to
protect against prejudice to him in the event he should thereafter have a change
of heart, Judge Pollak appointed two back-up counsel who would be prepared
to consult and to take over at any point. This is of crucial importance to the
issue before us because Moskovits was expressly advised a week before the
retrial that he could receive a higher sentence and he chose once again to reject
representation and opt for self-representation.1 Given that Moskovits had and
rejected the option of effective professional representation after learning what
he had at stake, it involves no speculation to conclude that Moskovits would
have chosen self-representation following a flawless waiver hearing and that
the deficiency to which he now points had no effect on these proceedings.
Limiting Moskovits's sentence under these circumstances would constitute a

windfall, pure and simple.

49

I am mindful that "[s]ome constitutional violations ... by their very nature cast
so much doubt on the fairness of the trial process that, as a matter of law, they
can never be considered harmless." Satterwhite v. Texas, 486 U.S. 249, 256,
108 S.Ct. 1792, 1797, 100 L.Ed.2d 284 (1988). Such is the case where "any
inquiry into a claim of harmless error ... would require, unlike most cases,
unguided speculation." Id. (quoting Holloway v. Arkansas, 435 U.S. 475, 491,
98 S.Ct. 1173, 1182, 55 L.Ed.2d 426 (1978). Accordingly, this court has
refused to speculate on whether representation throughout trial for a criminal
defendant would have produced a result different from that achieved by the
defendant without representation. It is simply impossible to tell what a skilled
and fully informed counsel would have been able to accomplish during the
representation. See United States v. Welty, 674 F.2d 185, 194 n. 6 (3d
Cir.1982). On the other hand, the general rule remains that a criminal
conviction should not be overturned if there is no causal connection between
the judgment and the alleged constitutional error. Even where the Sixth
Amendment right to counsel has been infringed, an affirmance is in order if the
"scope [of the error] is readily identifiable" and "the reviewing court can
undertake with some confidence its relatively narrow task of assessing the
likelihood that the error materially affected" the outcome. Satterwhite, 486 U.S.
at 256, 108 S.Ct. at 1797 (quoting Holloway, 435 U.S. at 490, 98 S.Ct. at
1181).

50

Determining that there was no causal connection here between the alleged
constitutional error and Moskovits's conviction involves no speculation. On the
contrary, the record establishes with certainty that the district court's failure to
advise Moskovits at the waiver hearing of the range of penalties he faced did
not affect Moskovits's decision to represent himself, and hence did not in any
way affect the subsequent course of events.

II.
51

In part III-B, the court concludes that the district court did not err when it
sentenced Moskovits in part based on its finding that Moskovits committed
perjury at the habeas hearing. While I believe that the court's discussion is fully
consistent with my interpretation of United States v. Dunnigan, 507 U.S. 87,
113 S.Ct. 1111, 122 L.Ed.2d 445 (1993), in my view, a more detailed
explanation is warranted.

52

Dunnigan stands for two propositions. First, in order for a district court to
enhance a sentence for perjury pursuant to United States Sentencing Guidelines

("U.S.S.G.") 3C1.1, the district court must review the record and find by a
preponderance of the evidence that each of the elements of perjury (willfulness,
falsity, and materiality) is present. The district court cannot assume that a
defendant has perjured herself merely because she has testified at trial and was
found guilty. Because the sentencing court must make affirmative findings with
respect to each element of perjury, its conclusion is "independent" of the jury
verdict. Id. Second, when a court enhances the sentence of a defendant who
testified at trial in accordance with this procedure, the court does not violate the
defendant's right to testify at trial on her own behalf. Dunnigan, 507 U.S. at 9598, 113 S.Ct. at 1117-19.
53

It is important to realize that while a court, under Dunnigan, must make

"independent findings" with respect to each perjury element, this does not mean
that the jury's verdict may not play a role in this fact finding process. Just as a
jury verdict has issue preclusive effects in subsequent proceedings with respect
to facts necessarily resolved by a criminal jury, e.g., Appley v. West, 832 F.2d
1021, 1025-26 (7th Cir.1987), "a guilty verdict, not set aside, binds the
sentencing court to accept the facts necessarily implicit in the verdict." United
States v. Boggi, 74 F.3d 470, 478-79 (3d Cir.1996) (quoting from United States
v. Weston, 960 F.2d 212, 218 (1st Cir.1992)). Thus, if a defendant has testified
that he was elsewhere at the time of a robbery, and the jury finds him guilty of
that robbery, the jury's verdict provides a sufficient basis for a finding by the
court that the defendant's testimony was false. If the record also provides
support for findings that this false statement was material and willful and the
court so finds, an enhancement under 3C1.1 is clearly appropriate.

54

The district court here found by a preponderance of the evidence that

Moskovits perjured himself at the habeas hearing:

55 obtain a new trial, Moskovits had to convince the court ... that his testimony was
To
such that it rendered the jury's verdict suspect. [T]o sustain that heavy burden,
Moskovits resorted to perjury. Moskovits's perjury consists of his repeated denial of
his involvement in specific events which occurred during the course of the
conspiracy.
56

(A.131-2.) This finding encompasses all of the elements of perjury. Compare

Boggi, 74 F.3d at 479 (holding that the following finding encompassed all of
the elements of perjury: "I don't see how, in view of his flat denials and the
jury's conviction, that you can find otherwise than that he testified falsely on
the stand.").

57

The district court's conclusion by a preponderance of the evidence that all of the

elements of perjury are present is well supported by the record even though
Judge Newcomer was not present at the habeas hearing. Regarding falsity,
Moskovits testified repeatedly that he was not involved in the cocaine
distributions alleged in the indictment. This is evident from the transcript of the
hearing. The jury convicted Moskovits of distributing cocaine as alleged in the
indictment and it necessarily resolved this factual issue when it convicted him.
The district court was bound by this determination and had no choice but to
conclude that Moskovits's testimony that he was not involved in the alleged
cocaine distributions was false. That Moskovits may have been able to
convince the jury otherwise had he testified at trial is irrelevant.2
58

Moreover, it is indisputable that this testimony was material. The purpose of

the habeas hearing was to determine if there was a reasonable probability that
by testifying Moskovits could have convinced the jury that he was innocent. As
the district court observed, Moskovits had a "heavy burden" of trying to
"convince the court ... that the jury's verdict [in the first trial] was suspect" and
he "resorted to perjury" in order to carry that burden.

59

Finally, regarding willfulness, given Moskovits's testimony "regarding so many

facts on which [ ]he could not have been mistaken, there is ample support for
the District Court's finding [of willfulness]." Dunnigan, 507 U.S. at 95, 113
S.Ct. at 1117. The district court could make this determination by a
preponderance of the evidence based on the transcript of the hearing alone.
Moreover, the inference of willfulness was more compelling because
Moskovits did not offer any alternative explanation. In response to the
government's argument in favor of a heavier sentence reflecting perjury,
Moskovits offered no explanation suggesting that his testimony was not willful.
On the contrary, he did not waiver from the version of events he recounted at
the habeas hearing.

III.
60

I agree with the court that it was error for the district court to consider
Moskovits's rejection of the government's plea offer as an aggravating factor in
determining the appropriate sentence. Accordingly, I would reverse and remand
for resentencing. I would not, however, limit the district court's discretion to a
sentence of fifteen years or less.

Honorable William A. Norris, Circuit Judge, Ninth Circuit Court of Appeals,

sitting by designation

Because the offenses occurred prior to November 1, 1987, the United States
Sentencing Guidelines do not apply. See U.S.S.G. Ch. 1, Pt. A(2)

Judge Pollak granted Moskovits's motion and disqualified himself from

presiding at the retrial. Judge Pollak decided he should avoid any appearance of
impropriety that might have arisen from his long association with the
University of Pennsylvania, where Moskovits had been a student during much
of the period covered by the indictment. United States v. Moskovits, 866
F.Supp. 178 (E.D.Pa.1994)

The challenged conditions, set forth in the court's Order, dated September 21,
1994, were as follows:
The defendant shall, when acting as counsel, state the word "Question" prior to
asking a question of himself as witness. When acting in the role of witness, the
defendant shall state the word "Answer" prior to answering the question posed.
Moreover, prior to responding to an objection posed by counsel for the
government, the defendant shall note clearly that he is acting in his role as
counsel, not as witness. Similarly, should defendant object to any question
posed by counsel for the government on cross-examination, such objection
shall be prefaced by a clear statement that the defendant is acting in the role of
counsel, not witness. This procedure protects the rights of the defendant while
minimizing the possibility of confusion.
App. at 76. In devising these procedures, Judge Newcomer relied on United
States v. Nivica, 887 F.2d 1110, 1120-23 (1st Cir.1989), cert. denied, 494 U.S.
1005, 110 S.Ct. 1300, 108 L.Ed.2d 477 (1990).

We are not persuaded by Moskovits's argument that his testimony at the

evidentiary hearing on his 2255 petition makes the nature and impact of the
testimony he would have given at the trial knowable. See United States v.
Romano, 849 F.2d 812, 815-16 (3d Cir.1988) (holding nature of testimony
defendant would have given at fourth retrial too speculative to be evaluated,
even though defendant had testified at the first and second trials)

Judge Pollak stated:

You appreciate that acting as your own lawyer, you would not be able to
present those facts [of Moskovits's life] autobiographically to the jury except
on such occasion as you would elect, if you elect, to take the witness stand as a
witness. That is to say in speaking to the jury by way of argument, opening
statement or closing argument, you would not be able to speak in the first
person. You would not be able to say I. The presentation would have to be in
terms of Mr. Moskovits. So the jury would continue to understand that you are

there in your role as advocate, not as speaker about yourself.

App. at 49.
7

The Assistant United States Attorney stated:

I understand his point that he is the person who knows what he contends to be
his version of the facts, but in the normal processes of litigation, that gets
communicated to defense counsel when the defendant and defense counsel then
figure out the most effective way to present that to a jury and it seems to me
that Mr. Moskovits should be made aware of the fact he's going to lose the
benefit of that advice
....
THE COURT: Is there anything you would like to say with respect to [the
Assistant United States Attorney's] very well-chosen comments, Mr.
Moskovits?
App. at 52.

Moskovits was originally sentenced to 17 years. Judge Pollak later determined

that the mandatory minimum sentence should not have been enhanced and
resentenced Moskovits to 15 years. United States v. Moskovits, 784 F.Supp.
183 (E.D.Pa.1991)

In a variation of the government's argument, the dissent asserts that we can

know with certainty that Moskovits would have chosen self-representation even
if the waiver hearing had been flawless because he chose to represent himself
even after "learning what he had at stake" during the in-chambers exchange.
Therefore, the dissent argues, the defective waiver hearing "did not in any way
affect the subsequent course of events" and the judgment should not be
disturbed because it is not causally connected to the constitutional error.
Because an unknowing and unintelligent waiver of counsel is a constitutional
violation that pervades the entire proceeding, it can never be considered
harmless. United States v. Welty, 674 F.2d 185, 194 n. 6 (3d Cir.1982) (noting
that the right to assistance of counsel is "among those 'constitutional rights
[which are] so basic to a fair trial that their infraction can never be treated as
harmless error' ") (quoting Chapman v. California, 386 U.S. 18, 23 & n. 8, 87
S.Ct. 824, 828 & n. 8, 17 L.Ed.2d 705 (1967)); see also United States v.
Salemo, 61 F.3d 214, 221-22 (3d Cir.1995) (refusing to apply harmless error
analysis to deprivation of right to counsel at sentencing). In any case, we can
only speculate about Moskovits's reasons for proceeding to trial as his own
lawyer after the in-chambers conference. We can only speculate about how

long it would have taken standby counsel to get up to speed to try Moskovits's
case, and whether any continuances that might have been necessary would have
prejudiced the defense because of the potential loss of witnesses then available
to testify
10

Moskovits's attorney stated:

The only thing I would say, Judge, is that he knows the case well. I think
you've had enough experience with him to know that he is ultra bright and ultra
articulate.... He is not someone who is unfamiliar with the case. He's lived with
it and I must say, Judge, a lot of the research that went into a lot of the material
before you over--I've been in this case, what, four or five years now--has come
from [Moskovits]....
So I think that of all the defendants I've ever represented, he is one of the
brightest, most articulate and I think an extremely hard-nosed attorney in fact, if
you want to call him that
....
App. at 50.

11

For similar reasons, we reject Moskovits's request that his case be assigned to a
different judge for resentencing on remand

While the court points out that Judge Newcomer did not specifically say
anything about Moskovits's prior fifteen year sentence, as Moskovits conceded
at oral argument, Judge Newcomer's statement at the pretrial hearing "clearly
implies" that Judge Newcomer could sentence Moskovits to a greater sentence
after retrial

Moskovits argues that it was improper for Judge Newcomer to conclude that
Moskovits's habeas testimony was false because Judge Newcomer was not
present at the habeas hearing and Judge Pollak, who was present, made a
determination that Moskovits's testimony was credible. Judge Pollak made no
such determination. Judge Pollak concluded only that this is not one of those
"rare cases" where he could conclude that the defendant's own testimony would
not have affected the jury verdict. United States v. Moskovits, 844 F.Supp. 202,
208 (E.D.Pa.1993)